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Questions from Our Members: February 25, 2011

Jim from Novi, MI: How does the commerce clause relate to the healthcare law?

Many proponents of Obamacare cite the Constitution’s Commerce Clause as justification for the individual mandate to purchase health insurance. Advocates of this view, like Minority Leader Nancy Pelosi (D-CA), have claimed that the Supreme Court’s Commerce Clause jurisprudence leaves “no doubt” that the insurance requirement is a constitutional exercise of that power. They are wrong.

In Article I, section 8, the Commerce Clause grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

Clear enough, right? Not so fast. In 1942, the Supreme Court ruled that any activity that “exerts a substantial economic effect on interstate commerce” is subject to Congress’ regulation, even activities that don’t cross state boundaries. Today, proponents of the individual mandate go even further and contend that, under this power, Congress may regulate anything—even doing nothing at all! They argue that inactivity is really an activity of itself.

Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service. As explained in an analysis by Heritage legal scholars, no decision or present doctrine of the Supreme Court justifies such a claim of power. Because this claim of power by Congress would literally be without precedent, it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine. The power of Congress to regulate interstate commerce does not justify an individual mandate, even under the most expansive readings.

Yvonne from Glendora, CA: Why does no one talk of lowering unemployment payments?

The consequences of extended unemployment benefits are some of the most conclusively established results in labor economic research. According to research by Heritage economists James Sherk and Katherine Campbell, “Extending either the amount or the duration of UI benefits increases the length of time that workers remain unemployed.” Unemployment benefits, in other words, reduce the pressure to make difficult choices—such as moving or switching industries—to begin a new job.

Just recently, Congress modified the unemployment insurance program so that workers in states with high unemployment now qualify for a maximum of 99 weeks of unemployment benefits—almost two years. In addition to the basic 26 weeks of benefits, Congress created the Emergency Unemployment Compensation program, which provides benefits for an additional 34 weeks in all states.

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